Seized Pirates in High-Seas Legal Limbo, With No Formula for Trials

Earlier this month, captured Somali pirates were transferred from the aircraft carrier John C. Stennis to another ship.Credit
Tyler Hicks/The New York Times

Earlier this month off the coast of Pakistan, 15 Somali pirates held aboard the aircraft carrier John C. Stennis were loaded onto a helicopter and flown to a newly arrived carrier nearby, the Carl Vinson.

The pirates had been captured by yet another American warship on Jan. 5, taken from an Iranian dhow they had used as a high-seas base to attack passing merchant ships. Now the Stennis was departing the North Arabian Sea, and it could not keep its prisoners. Wearing leg irons, they were transferred from floating brig to floating brig.

Behold a seam in international law enforcement, and a case of high-seas legal limbo.

The many navies involved in counterpiracy patrols off Africa’s northeastern shore have learned the pirates’ habits and sharpened interdiction efforts. Hijackings have declined sharply in the past year. But where interdiction ends, an enduring problem begins: what to do with the pirates that foreign ships detain?

Vessels from several navies collaborating on counterpiracy are holding a total of 71 captured pirates, according to Vice Adm. Mark I. Fox, commander of the United States Navy’s Fifth Fleet. No system has been developed for prosecuting their cases.

In previous cases, the Navy has at times resorted to putting captured pirates in life jackets and ferrying them in small boats into the Somali surf, where they hop out and wade to shore. (These releases have been videotaped, sailors said, as evidence that the prisoners were healthy and freed safely.)

No one — except perhaps the pirates — has found that outcome satisfying, and the State Department insists that this will no longer be an acceptable resolution. Newly detained pirates, according to a senior State Department official, will face trial.

The many possible permutations for prosecuting the 15 pirates now locked up in the Vinson almost perfectly capture the puzzle surrounding such cases.

The pirates are Somali. They attacked the motor vessel Sunshine, which is Greek-owned but operates under a Bahaman flag. They were detained in international waters, but in the so-called exclusive economic zone of Oman. And they had commandeered an Iranian fishing vessel and held the crew hostage for more than a month.

The Navy took the pirates into custody. But the former hostages returned to Iran, and the Sunshine simply steamed on, over the horizon and out of sight.

So which country should take the case? And how would it hold the pirates before trial, collect evidence, and arrange for foreign witnesses and foreign investigators to testify?

A few nations, including the Seychelles, have entered nonbinding memorandums of understanding that some American officials believe could clear a path for them to hear high-seas piracy cases. But the agreements have not proved robust, available prison systems can be small or strained, and the backlog of captured pirates must await venues.

Discussions about where are under way with several possible countries.

“We’re still searching for an appropriate venue for prosecution, but we are committed to bringing these pirates to justice,” said an assistant secretary of state, Andrew J. Shapiro. He added that Secretary of State Hillary Rodham Clinton “has made clear that she is not happy with the practice of catch and release.”

The pirates’ victims have shared that sentiment. Mahmed Younes, captain of the Iranian fishing vessel, was held hostage by the 15 pirates from November to early January. He said it was the second time in recent years that he had been taken captive by Somali pirates in the North Arabian Sea.

“The punishment should be for the crime,” Captain Younes said, in an interview at sea soon after being freed. “They should be taken to court and tried. At any cost they should not be let go, because if you let them go they will come back stronger and harass more people.”

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He added, “Every time these navies’ countries let them go, the pirates just laugh at that.”

The reasons that cases languish vary from an absence of bureaucratic capacity in countries in the region affected by piracy to concerns about costs. International politics also play a role.

American officials said that in pursuing prosecution for the group of 15 pirates, for example, the United States had asked several countries to consider taking the cases, but not the most obvious venue — Iran. The tensions between Washington and Tehran have precluded such dialogue.

The legal questions persist even as counterpiracy measures show gains. In recent years, Somali pirates have typically held 15 or 16 vessels at a time, while negotiating ransoms for their release. Early last year they held a high of 32 vessels. But as the vessels have been ransomed, fewer have been captured.

As of this month, pirates hold six ships — the lowest number in years, Admiral Fox said.

The Navy credited the increased presence of ships from NATO and the European Union, as well as the actions of independent participants, including India.

It also said that merchant vessels were more often sailing with armed security teams. “No vessel with an on-board security team has been hijacked,” a State Department official said.

Admiral Fox and Mr. Shapiro agreed that whatever the venue for the current high-profile case, a longer-term solution was necessary.

One proposal is to form a regional legal center that would be able to apply its own laws to the cases, interact with foreign navies, and have the capacity to incarcerate convicted pirates in a prison system and to return others safely to their home nations.

The United States supports such a “piracy chamber,” Mr. Shapiro said.

The group of 15 pirates seemed not especially worried by their capture.

One, Mohammed Mahmoud, said they had developed a script for lying to naval patrols — they were simply fishermen searching for lost, drifting nets — and that if they were detained they expected to be treated well.

He seemed to think that if he were patient, the Navy would play by rules that were not especially menacing.

“The Navy has a system,” Mr. Mahmoud said while aboard the Iranian fishing boat, waiting to be transferred to the first American warship. “They do not shoot everything. Everything is balanced, very balanced.”

An American Navy officer also said that after the pirates had been read their rights, in case any of them ended up in American courts, many had become uncooperative with investigators, apparently expecting that with time they would be let go.

Rear Adm. Kaleem Shaukat, the Pakistani commanding Combined Task Force 151, the region’s multinational counterpiracy command, said that without a legal system to match the navies’ tactical progress, piracy, and uncertainties about what to do with Somali prisoners on the high seas, would persist.

“If there is no effective legislation that makes sure these pirates are taken to a court of law and punished, if that does not occur, they will come back again and hijack other ships,” he said. “That is still a weak area.”

A version of this news analysis appears in print on January 28, 2012, on Page A9 of the New York edition with the headline: Seized Pirates in High-Seas Legal Limbo, With No Formula for Trials. Order Reprints|Today's Paper|Subscribe